Karnataka High Court
Prakash Road Lines vs Oriental Fire And General Insurance ... on 20 August, 1987
Equivalent citations: ILR1987KAR3576
JUDGMENT Chandrakantaraj Urs, J.
1. The appeal is filed by the unsuccessful defendant. It arises out of the Judgment and decree passed by the IV Additional City Civil Judge, Bangalore City, in O.S. No. 1718/80 on 4-8-1986. The respondents who were plaintiffs, sued the defendant-the Road Transport Carrier, for damages for certain consignments rendered useless or rendered unsaleable and unmerchantable on account of exposure or breakage suffered in an accident while the goods were in transit.
2. The undisputed facts are :- that Park Davis (India) Ltd., Bombay consigned certain goods to 2nd plaintiff Spencer & Co., at Bangalore, Madras, Calicut and Cochin. What was consigned appears to be mostly drugs. The consignment that was carried by a carrier belonging to the defendant met with an accident. The Driver was seriously injured and Cleaner of the lorry was killed on the spot and the consignments was spilled and sprewed all over the road. On receipt of the news, the defendant sent another lorry, picked up all the goods which could be found and brought them to its branch godown at Bangalore.
3. The Insurance Surveyor made an initial survey and separated what was in good condition and which could be delivered to the consignee and instructed the 2nd plaintiff to despatch the goods for delivery in proper condition to their respective destinations which was carried out by the 2nd plaintiff. In so far as unmerchantable consignments were concerned, they were required to be transferred to the godown of the 2nd Plaintiff at Bangalore for safe custody to prevent further damage and loss.
4. There, at the godown of the 2nd plaintiff, the Surveyor made a final assessment of the damage in the presence of the representatives of the defendant and submitted a Report. There it was found on the basis of the Invoice value that the loss was in the sum of Rs. 38,396/-.
5. In the mean while, the 2nd defendant company put in their claim in the prescribed form to the defendant who denied his liability. It was in that circumstance that the suit was filed after necessary exchange of notices and replies.
6. As already pointed out, the defendant's stand in the written statement was also one of non-liability. On such a stand, the following issues were framed by the trial Court :
1. Whether plaintiffs prove that damage caused to suit consignment was to an extent of Rs. 38,396-00 ?
2. Whether 1st plaintiff is entitled to claim such damages?
3. Whether defendant is not liable for damages for reasons mentioned in para-5 of written statement ?
4. To what relief ?
Addl. Issues :
1. Whether the plaintiffs prove that they are owners of the goods and whether second plaintiff had insurable interest in the goods ?
2. Is the suit barred by limitation as pleaded by the defendant ?
On Issues 1 and 2, Court found in favour of the plaintiffs and decreed the suit. On Additional issues also, it found in favour of the plaintiffs. Aggrieved by the same, the present appeal is preferred by the defendant.
3. An attempt was first made by the Learned Counsel for the defendant on the basis of the fact that the Common Carriers Act was not on the relevant date applicable to the State of Karnataka and therefore, the decree passed in terms of the Common Carriers Act could not be a valid decree. We do not think there is merit in that contention. Whether the Common Carriers Act, 1865, was in force in Karnataka or not that the carrier, namely the defendant was in the position of a bailee cannot be disputed and in fact it has not been disputed. Therefore, if a Bailee fails to perform his obligations as such, will be liable whether such failure is on account of negligence or for other reasons, except by reason of force majeure or vis Major. Therefore, learned Counsel did not seriously press that contention, which, however, we were inclined to reject.
4. In that behalf, Sri R.D. Kolekar, learned Counsel for respondents/plaintiffs, brought to our notice a decision of Division Bench of this Court in R.F.A. No. 102/75, disposed of on 27-6-1986. It has taken identical view of the matter.
5. It was next urged streneously by the learned Counsel that the defendant was entitled to the salvage value, as the goods assessed for damages was not a total loss, as evidenced by Ext.P-24, the Report of the Surveyor. Our attention was drawn to a passage in the Report which stated that in some of the articles, the bottles were not damaged, but the labels were soiled and the extent of damage could be really assessed by the manufacturers, Park Davis (India) Ltd., Bombay who alone would know the salvage value of the contents of those bottles. True, that Report was furnished to the defendant as soon as it was made by the Surveyor. The assessment and the damage was also done in the presence of the defendant's representatives. Therefore, defendant at all times was aware that there was some salvage value, but he never pleaded that in his written statement nor did he produce any evidence in support of such a plea. He cannot, therefore, now be permitted to depend on the observation made by the Surveyor in his Report which could have been acted upon by the defendant in his own interest at the right time. If he failed to do that, he cannot now seek relief at this point of time. Therefore, we reject the argument.
6. There is no merit in this appeal. It is rejected.